CONGRESS' LATEST MOVE TO EXTEND COPYRIGHT PROTECTION IS MISGUIDED

ALMOST EXACTLY 20 years ago, Congress passed the Sonny Bono Copyright Term Extension Act, which extended the term of existing copyrights by 20 years. The Act was the 11th extension in the prior 40 years, timed perfectly to assure that certain famous works, including Mickey Mouse, would not pass into the public domain.
Immediately after the law came into force, a digital publisher of public domain works, Eric Eldred, filed a lawsuit challenging the act. The Constitution gives Congress the power to secure copyrights “for limited times,” for the express purpose of “promot[ing] Progress.” Extending the copyright of an existing work, Eldred argued, could not promote anything — the work already exists. And repeated extensions of existing terms cannot be what the framers meant by “limited times.”

The Supreme Court agreed to hear the challenge. I was lead counsel for the plaintiff. And in addition to our brief, a scad of creators who build upon the public domain, along with librarians, archivists, and economists, filed briefs in support of Eldred; Nobel Prize winner Milton Friedman agreed to sign the economists' brief only if the words "no brainer" were included.

Yet the court rejected our challenge to the law. Justice Ruth Bader Ginsburg was not convinced that Congress was addicted to term extensions. The most recent extension, the Court remarked, simply harmonized the term internationally. After the 1998 extension, there was no reason, the Court believed, to think that Congress would need to extend terms anymore. After all, with a term of 95 years for work created before 1976, and life of the author plus 70 years for work beginning in 1976, how much more time could possibly be needed?
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https://www.wired.com/story/congress-latest-move-to-extend-copyright-protection-is-misguided/